Part 2: Canada's Corporate Governance Guidelines Are Out of Date

11/02/2014 09:59 EST
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Updated
01/02/2015 05:59 EST

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Following up from last week's blog, I argued that Canada's corporate governance guidelines were out of date because of: 1. Lack of principles and practices; 2. Lack of focus on risk management; 3. Lack of independence of mind; 4. Lack of industry expertise; and 5. Lack of shareholder engagement.

Here are reasons 6-10 that our Guidelines need an update:

6. Lack of shareholder engagement: The words "investor" and "shareholder" are mentioned once each, in a perfunctory manner, within the 2005 Guideline. Shareholders own the company and regulators and investors are explicitly providing context now: for investor input on director selection; for engagement and dialogue between investors and directors; and for the use of technology in shareholder communication and annual meetings. The foregoing are all absent from the Guidelines. Canada has still not adopted "say on pay," which has also been a catalyst for shareholder engagement. The US, UK, Australia, Germany, France and other European countries either have say-on-pay or are moving rapidly in this direction. Canada is a laggard.

7. Lack of focus on strategy and value creation. "Strategy" is mentioned only once within the entire Guidelines, and that is that the board should approve a strategic planning process, and approve, at least annually, a strategic plan. It is hardly surprising that many boards short-change strategy at the expense of compliance. This requirement of once a year essentially marginalizes a board in its strategic role. When I interview top directors who add value strategically, the strategic oversight and involvement by boards are much more focused and engaged. There are strategic best practices here that would enhance the performance and value creation that a proper board can make. Regulators drafting this guidance should have experience creating listed company value.

8. Lack of focus on sustainability: The word "environment" or "sustainability" is not mentioned at all in the 2005 Guidelines, a noticeable omission. Australia's emphasis on economic, environmental and social sustainability risks, within its Corporate Governance Principles and Recommendations, is second to none, as is South Africa's focus on "integrated sustainability reporting" within King III. This omission is especially noticeable given investor focus on the environmental, social and corporate responsibility. The lack of environmental stewardship and response to climate change is also a broader issue. Canada is also a laggard here.

9. Lack of compensation guidance: The regulatory movement from short-term, quantitative, financial metrics, to risk-adjusted, long-term, qualitative, non-financial metrics for executives is absent from the Guidelines, as is guidance on non-executive remuneration. Investors, regulators and good boards are focusing on leading performance metrics that reflect the entire business model and value chain (most of which is non-financial), and that are longer-term in nature.

10. Lack of focus on the chair of the board: Lastly, but far from least, the position of the board chair has undergone a metamorphosis since 2005. There is no guidance at all offered on the role, responsibility and attributes of an independent chair, within the Guideline. Other codes offer extensive guidance on skill-sets and responsibilities that and on which the chair should possess and execute. Without this regulatory guidance, a chair (and committee chairs) can be bullied or unduly influenced by dominating reporting management such that they are rendered ineffective, albeit formally independent. More guidance is needed. Chair position descriptions should not be drafted by management lawyers or management-retained lawyers.

Conclusion

Does Canada improperly have a false sense of governance superiority? Perhaps so. But in this rapidly changing field, if you rest, you are left behind. Nine years is sufficient rest.

There are arguments (i) by industry and advisors to management that corporate governance in Canada is not broken so does not need to be fixed; and (ii) by regulators who complain of scarce resources and how difficult it is with fragmented securities commissions and the diversity of Canadian companies. I have never been persuaded by these arguments.

To address the second argument, what is required is leadership and political will. Premier Kathleen Wynne's and the OSC's Maureen Jenson's emphasis on gender diversity have resulted in nine jurisdictions collaborating and endorsing recent changes to the disclosure of gender diversity, term limits, and measureable objectives, for example. To address the variety of Canadian companies, South Africa's King III Code applies to all types of companies (public, private, state and non-profits). The issue is one of drafting.

To address the first argument, namely the arguments by industry, regulators should be conscious of undue influence by reporting management and service providers, whose internal power, business model, or commercial interests may be disrupted by governance rejuvenation. The primary consideration for policy renewal should be evidence-based policy and international consistency with best practices. Regulators should also guard against potential conflicts of interest and regulatory capture, by themselves, including those individuals within regulators who intend to return to private industry, or who have other close association with regulated companies. Regulators should also guard against those provincial regulators who oppose reform on the basis of extraneous and non-relevant considerations, such as a desire to maintain turf.

Richard Leblanc is an Associate Professor, Law, Governance & Ethics, at York University. He can be reached at rleblanc@yorku.ca.